Hart’s choice theory Notes for January 30

Main points

What does it mean to have a right? That is, what does having a right give the person who has it that someone who does not have a right doesn’t have?

Hart’s answer is: control over other people’s freedom or, what amounts to the same thing, control over other people’s duties. (Duties are limits on freedom, meaning moral freedom or what a person is morally permitted to do).

His way of bringing this out was to criticize a different answer: that having a right consists in being the beneficiary of someone else’s duties. Hart argued that there are some examples where a person is the beneficiary of a duty but does not have a right.

What’s the question?

Before pressing on, it’s worth noting something about the question that Hart was trying to answer. Hart was trying to discover what is distinctive about rights. He asked something like this. “What do rights do that other moral notions, such as duties, do not?” So the redundancy objection to the benefit theory is that it does not supply an answer to that question: rights and duties are just two different words for basically the same thing.

But it isn’t obvious that there has to be anything distinctive about rights; Hart may have been asking the wrong question.

Hart’s implicit answer is found in the vocabulary he lays out on pp. 180-1: rights are thought of as things that people have and use and that seems to mean that they are thought of as being distinctive.

Third party beneficiaries

One example involved third party beneficiaries. David (D) promises Caitlin (C) to do something for Caitlin’s mom (M). M is the beneficiary of D’s duty, but M does not have a right against D. Only C does.

As Patrick and John pointed out, however, C could be described as benefitting from the performance of X’s duty.

The essential point for Hart’s purposes is that M does not have the right even though M is at least one of the beneficiaries. So being a beneficiary of a duty cannot be sufficient for having a right.

I tried to suggest that being the beneficiary of the performance of duty is not a necessary condition of having a right either. C may be worse off if D cares for M than if D does not do so but C might still have a right against M. Or so I said.

Note: Raz will present a benefit theory that will challenge Hart’s view. So if you think something fishy is going on here, you’ll probably prefer Raz.

Revisions

Suzie and John proposed revisions of the benefit theory. Suzie proposed a way out of the third party beneficiary problem by limiting those with rights to the intended beneficiary of the performance of a duty. John proposed that being a beneficiary of the performance of a duty is only a necessary, but not a sufficient, condition of having a right.

Both proposals could be challenged by a clear example of a right that is not beneficial to the person who has it. I myself think that there should be such examples because I don’t think that having rights is necessarily beneficial. But every case I came up with (e.g. my right to have the cigarettes that I paid for delivered) was answered with “you benefit by getting what you want, even if you don’t benefit overall.”

Hmm. What about this. Suppose I have the right to decide which child will get the Twinkie. This means that each child threatens to hate me forever if he or she is not the recipient. I would really, really, really not have to make this choice. I don’t care who gets the damn Twinkie and I find it stressful to be subjected to all of this whining.

But if one of them grabs the Twinkie without my permission, my right to decide will have been violated.

If you have qualms about the fact that the example uses children (can children violate rights?), substitute “faculty” for “children”, “dean” for “me”, and “really nice offices” for “Twinkie”. I’ll bet the example will be largely the same.

In any event, it’s a better example than the ones I came up with in class.

Duties without rights

One other area where we could really use some clean examples concerns duties without rights.

The best cases I came up with involve duties based on virtues. I have to be generous because that’s what a good person does.

Here, the duties are based on considerations that involve only me. In order to be a good person, this is how I have to behave.

Usually, rights are thought of as being based on consideration of others, those who have the rights. That seems to distinguish the cases of duties based on rights from those based on virtues or other considerations of one’s own moral qualities.